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ELCDismissedEnvironment and Land Case Civil Suit 900 of 2012· [2023] KEELC 20873 (KLR)

Korean United Church of Kenya & 3 others v Song

Environment and Land Court
17 October 2023
MMM. D. Mwangi
6,925 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a church's multi-million shilling land damage claim because it couldn't prove the neighbour—not the county—caused the demolitions.

What this practically means

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Executive summary

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The four Plaintiffs, led by the Korean United Church of Kenya, sued Seung Ho Song over the subdivision of LR No. 2/250, which the parties had jointly purchased and shared 40:60. They alleged the Defendant forged the 2nd Plaintiff's signature on the subdivision plan, caused a non-existent three-metre sewer way leave to be introduced onto their parcel LR No. 2/698, and instigated County demolitions of their approved developments, seeking injunctions and damages. The suit was consolidated with three other files, with this file as lead. At hearing the Plaintiffs withdrew claims against the County and other parties, pursuing only compensation. The Defendant denied liability, asserting the County acted independently, and counterclaimed for a mandatory injunction to construct drainage on the way leave. The suit property LR No. 2/697 had been sold to a third party in 2020, rendering injunctive reliefs moot. Framing five issues, the court held that the Plaintiffs failed to prove the Defendant controlled the County Government's demolitions; that the special damages of Kshs 4,260,000 were not strictly proved, the valuation reports being unexplained revisions lacking itemised detail; that seeking Kshs 12,750,000 in submissions breached the pleadings; and that no trespass by the Defendant was proved. The counterclaim, overtaken by the sale, was also dismissed. Both the claim and counterclaim were dismissed with each party bearing its own costs.

Key legal issues

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01

Liability for demolitions carried out by Nairobi City County

Holding

The Defendant was not liable; no evidence showed he controlled or directed the County Government's enforcement action.

Reasoning

PW1 admitted the demolition was carried out by Nairobi City County under enforcement notices. The County is a body corporate with independent powers under section 6 of the County Governments Act, capable of exercising its own mind on complaints. The allegation that the Defendant directed the County was mere speculation with no supporting evidence, and the Plaintiffs had withdrawn their claim against the County itself.

p. 11
02

Proof of special damages

Holding

Special damages of Kshs 4,260,000 not proved; claim for Kshs 12,750,000 in submissions was beyond the pleadings.

Reasoning

Special damages must be specifically pleaded and strictly proved with actual receipts. The valuation reports were 'revised assessment reports' whose revision the valuer could not explain; they lacked itemised detail, make, age and year of the items valued. The Plaintiffs also sought in submissions more than they pleaded, contrary to the rule that parties are bound by pleadings.

p. 12
03

General damages for trespass

Holding

Not proved; no evidence the Defendant ever trespassed after the subdivision.

Reasoning

The Plaintiffs' own witness affirmed the demolitions were carried out by the County Government. There was no proof the Defendant at any time entered the Plaintiffs' parcel after subdivision. Consequently general damages could not be awarded.

p. 12
04

Defendant's counterclaim

Holding

Dismissed as overtaken by events following his sale of LR No. 2/697 to a third party.

Reasoning

The Defendant was silent on his counterclaim in testimony and submissions. Having himself argued that the Plaintiffs' injunction claim was overtaken by events because he had sold the land, his own claim for a mandatory injunction and general damages failed for the same reason.

p. 12

Legal principles established

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  • Special damages must not only be specifically pleaded but also strictly proved.
  • Parties are bound by their pleadings and cannot travel beyond them.
  • A public entity such as a county government acts independently; a complainant cannot be held liable for the enforcement actions the county takes on its complaint absent proof of control.

Court orders

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  1. 1.The Plaintiffs' claim against the Defendant is dismissed.
  2. 2.The Defendant's counterclaim against the Plaintiffs is dismissed.
  3. 3.Each party shall bear its own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 176
  • Constitution of Kenya, 2010Article 183
  • County Governments ActSection 6
  • Civil Procedure RulesOrder 2 Rule 11
  • Criminal Procedure CodeSection 215

Cases cited (6)

  • Keshavji Jivraj Shah -vs- Kuldip Singh and Another
    [2021] eKLR

    Failure to file a defence means the allegations in the Plaint are deemed admitted.

  • Mary Njeri Mugo -vs- Jane Wakiui Gatimu & Another
    [2019] eKLR

    Title arising from an irregular agreement tainted with illegality enjoys no legal sanctity.

  • Hahn –vs- Singh
    (1985) KLR 716

    Special damages must be specifically claimed and strictly proved.

  • Total (Kenya) Limited formally Caltex Oil (Kenya) Ltd – vs- Janevans Ltd
    (2015) eKLR

    Actual receipts of payment must be presented; proforma invoices are insufficient.

  • Arthur K. Apungu –vs- Justnice Limited
    (ELCC 103 of 2009)

    Court agreed with the strict proof requirement for special damages.

  • Raila Odinga & Another –vs- IEBC & 2 others
    (2017) eKLR

    Parties are bound by their pleadings and must not travel beyond them.

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (article 162(2)(b) Constitution implied by the court's mandate; not expressly cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Korean United Church of Kenya & 3 others v Song", Case Analysis (2023). Environment and Land Case Civil Suit 900 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20873/eng@2023-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.